The IG Act, in purpose and effect, attempts to remove the present
incumbent IG, Charles C. Maddox, from his office. The Council’s
enactment unlawfully infringes upon the separation of powers between the
executive and legislative branches of the District government, mandated by
Congress in the Home Rule Act. It attempts to prescribe qualifications for
the office of IG different from, and more onerous than, those in effect
when he was appointed, which would render Mr. Maddox ineligible for
continued service as IG. Rather than being prospective, it purports to
apply to the present incumbent as of June 1, 2003, and to remove him as of
that date. Furthermore, as purported "emergency legislation"
effective June 1, 2003 – although expiring shortly afterwards – it is
structured to avoid the congressional review period provided for acts of
the Council in the Home Rule Act.

A more egregious violation of the allocation of powers between
executive and legislative branches in the Home Rule Act can scarcely be
imagined. In view of its manifest illegality, the IG Act enacted over the
Mayor’s veto is unenforceable and void. It imposes no valid obligation
of law on the Mayor or any other official of the District government. It
is a nullity in the eyes of the law, of no force and effect, and it must
be treated as such to preserve the rule of law in the District of
Columbia.

Mandamus Jurisdiction

1. Preliminarily, we note that the petitioners have sought the
extraordinary remedy of mandamus in this Court as an original matter,
without any asserted jurisdictional basis for doing so. Jurisdiction is
almost certainly lacking in this Court under the decision in Citizens
Assocation of Georgetown v. Washington, 291 A.2d 699, 703, 705 (D.C.
1972).

Moreover, the petition violates every principle governing the grant of
the writ of mandamus in this or any other Court. As the Supreme Court has
stated: "The common law writ of mandamus…is intended to provide a
remedy for a plaintiff only if he has exhausted all other avenues of
relief and if the defendant owes him a clear nondiscretionary duty." Heckler v. Runger,
466 U.S. 602, 615 (1984) (emphasis supplied).
Furthermore, "the remedy of mandamus is a drastic one, to be invoked
only in extraordinary situations." Allied Chemical Corp. v.
Daiflon, Inc., 449 U.S. 33, 34 (1980); see also Will v. United
States, 389 U.S. 90, 95 (1967).

Mandamus is to be utilized only in the clearest and most compelling
cases. Cartier v. Secretary of State, 506 F.2d 191, 199 (D.C.
Circuit 1974), cert. denied, 421 U.S. 947 (1975), and cases therein
cited. Mandamus can be invoked only when the plaintiff has a clear right
to the relief sought, the defendant has a clear duty to perform, and no
other adequate remedy is available. Blaney v. United States, 34
F.3d 509, 513 (7th Cir. 1994). See generally Wright, Law of
Federal Courts, at 131 (5th edition 1994).

Here, every element of mandamus is lacking. The plaintiffs have not
shown and cannot show either a clear right to relief or a nondiscretionary,
i.e., ministerial, duty owed to them by the Mayor. Moreover, they
have plainly failed to exhaust all other avenues of relief, specifically
including an action for quo warranto in the Superior Court, which Congress
in the D.C. Court Reorganization Act of 1970 provided in circumscribed
circumstances and under carefully fashioned procedural safeguards.

The resort to a mandamus action is procedurally defective because it is
an end-run around the method Congress provided to test the legality of
officeholding by a public official of the District of Columbia. D.C.
Official Code Section 16-3521 provides:

"A quo warranto may be issued from the Superior Court of the
District of Columbia in the name of the District of Columbia against a
person who within the District of Columbia usurps, intrudes into, or
unlawfully holds or exercises, a franchise conferred by the District
of Columbia, a public office of the District of Columbia, civil or
military, or an office in a domestic corporation. The proceedings
shall be deemed a civil action."

The code lays down specific procedures for the institution of such an
action. Section 16-3522 provides:

"The United States attorney or the Corporation Counsel may
institute a proceeding pursuant to this subchapter on his own motion,
or on the relation of a third person. The writ may not be issued on
the relation of a third person except by leave of the court, to be
applied for by the relator, by a petition duly verified, setting forth
the grounds of the application, or until the relator files a bond with
sufficient surety, to be approved by the clerk of the court, in such
penalty as the court prescribes, conditioned on the payment by him of
all costs incurred in the prosecution of the writ if costs are not
recovered from and paid by the defendant."

Section 16-3523 further provides:

"If the United States attorney or Corporation Counsel refuses
to institute a quo warranto proceeding on the request of a person
interested, the interested person may apply to the court by certified
petition for leave to have the writ issued. When, in the opinion of
the court, the reasons set forth in the petition are sufficient in
law, the writ shall be allowed to be issued by any attorney, in the
name of the District of Columbia, on the relation of the interested
person, on his compliance with the conditions prescribed by section
16-3522 as to security for costs."

None of these procedures has been followed in the present case. Cf. Cartier v. Secretary of State, supra,
506 F.2d at 199-200.

Nevertheless, because of the public importance of the issues raised by
this case, we will respond to the substance of the petition to show why it
should be dismissed on the merits as well as on procedural grounds.

Background of the Present Controversy

2. When Congress enacted the D.C. Financial Responsibility and
Management Assistance Act of 1995 ("FRMAA") (Public Law 104-8,
109 Stat. 97, D.C. Official Code Section 47-391.8(a)) in 1995 to deal with
the crisis which had brought the District to the verge of insolvency, it
created the District of Columbia Financial Responsibility and Management
Assistance Authority ("control board") and the Office of the
Chief Financial Officer of the District of Columbia – and in Title III
of FRMAA, Section 303 (D.C. Official Code Section 2-302.08), it
restructured and recreated a vastly expanded Office of the Inspector
General of the District of Columbia ("OIG") as one of the
pillars of the recovery and reform effort. In Section 303(a) (D.C.
Official Code Section 2-302.08 (1)(A)-(C)), Congress explicitly provided
for the appointment and removal of the IG by the Mayor as follows:

"(1)(A) There is created within the executive branch of the
government of the District of Columbia the Office of the Inspector
General. The Office shall be headed by an Inspector General appointed
pursuant to subparagraph (B), who shall serve for a term of 6 years
and shall be subject to removal only for cause by the Mayor
(with the approval of the [control board] in a control year) or (in
the case of a control year) by the [control board]. The Inspector
General may be re-appointed for additional terms.

(B) During a control year, the Inspector General shall be appointed by
the Mayor as follows:

(i) Prior to the appointment of the Inspector General, the [control
board] may submit recommendations for the appointment to the Mayor.

(ii) In consultation with the [control board] and the Council, the
Mayor shall nominate an individual for appointment and notify the
Council of the nomination.

(iii) After the expiration of the 7-day period which begins on the date
the Mayor notifies the Council of the nomination under clause (ii),
the Mayor shall notify the [control board] of the nomination.

(iv) The nomination shall be effective subject to approval by a
majority vote of the [control board].

(C) During a year which is not a control year, the Inspector General
shall be appointed by the Mayor with the advice and consent of the
Council. Prior to appointment, the [control board] may submit
recommendations for the appointment." (emphasis supplied)

These provisions established a number of important principles governing
the OIG:

First, Congress made explicit that the OIG is within the executive
branch of the District government.

Second, Congress provided for appointment of the IG by the Mayor,
subject to the approval of the control board in a control year and with
the advice and consent of the Council in a non-control year.

Third, Congress specified that the IG "shall be subject to
removal only for cause by the Mayor" (with the approval of the
control board or by the control board in a control year) and the Mayor
alone in a non-control year.

Fourth, nowhere in this carefully drafted statute did Congress
provide any role for the Council in the removal of the IG.

Congress went on in Section 303 of FRMAA, D.C. Code Section
2-302.08(a)(1)(D), to prescribe the qualifications for the IG in detail,
as follows:

"The Inspector General shall be appointed without regard to
party affiliation and solely on the basis of integrity and
demonstrated ability in accounting, auditing, financial management
analysis, public administration or investigations." (emphasis
supplied)

The present incumbent IG, Charles C. Maddox, was appointed to a 6-year
term in 1999, a control year, by the Mayor with the approval of the
control board. He was determined to be fully qualified for appointment
under Section 303(a)(1)(D). (A copy of the Mayor’s order appointing Mr.
Maddox and the control board resolution of approval is attached as Exhibit
B).

The present year is a non-control year, the control board having
suspended its operations on September 30, 2001, pursuant to FRMAA. As a
result, the only applicable removal provision governing the IG is that set
forth in Section 303(a)(1)(A) -- i.e., "only for cause by the
Mayor."

The IG Act recently passed by the Council over the Mayor’s veto
attempts to effectuate the removal of Mr. Maddox from office by act of the
Council, not the decision of the Mayor, and without any showing of cause
for his removal. Had the Council’s IG Act been made prospective only, it
might be open to the petitioners to argue that its purpose was not to
remove the present incumbent. But the attempt to apply it to the incumbent
gives the game away – it is an exercise of the power of removal by the
Council.

The Council’s IG Act also attempts to substitute different and more
onerous qualifications for the IG from those in effect when Mr. Maddox was
appointed. The Council purported to add the following qualifications for
the office:

"a minimum of 7 years of supervisory and management experience,"
and

"a minimum of 7 years demonstrated experience and ability, in the
aggregate, in law, accounting, auditing, financial management analysis,
public administration or investigations", and

graduation "from an accredited law school," membership in the
D.C. Bar "for at least 7 years immediately preceding his or her
appointment", A", and "7 years experience in the practice
of law", or

licensure as a CPA in the District of Columbia "for at least 7
years immediately preceding" appointment and "7 years
experience, in the aggregate, in the practice of accounting, tax
consulting or financial consulting", or

a CPA certificate from the D.C. Board of Accountancy "membership in the Greater Washington Society of Certified
Public Accountants", and "7 years experience in the practice
of public accounting."

Every one of these provisions goes beyond the qualifications for the IG
when Mr. Maddox was appointed. Moreover, here again the effort by the
Council to apply these new and more onerous qualifications to Mr. Maddox,
instead of making them prospective, gives the game away. The statute is
designed so as to effectuate indirectly the unlawful purpose of removing
Mr. Maddox from office, which the Council cannot do directly.

Mr. Maddox is not a graduate of an ABA-accredited law school, but of
the Northern Virginia Law School, which has not yet received accreditation
from the ABA. He was admitted to the Virginia State Bar in 1996 and to the
D.C. Bar on November 1, 2002. Thus he has not been a member of the D.C.
Bar for 7 years prior to his appointment by the Mayor as IG in 1999, and
he has not had 7 years experience in the practice of law. He is not
licensed as a CPA in the District and does not have 7 years experience in
the practice of accounting, tax consulting, or financial consulting. There
was no way in which he could acquire a CPA certificate from the D.C. Board
of Accountancy and obtain 7 years experience in public accounting between
enactment of the IG Act and June 1, 2003.

Under the Council’s IG Act, Mr. Maddox’s position would be declared
vacant as of June 1, 2003, because he does not and cannot meet the Council’s
newly adopted qualifications. And other provisions of the Council’s IG
Act further demonstrate how squarely this Act is targeted at Mr. Maddox.
He would not be permitted to serve in a hold-over capacity after June 1,
2003 until qualification of a successor, although that is the way in which
appointed administrative officials whose terms have expired are commonly
treated. And the Mayor would not be permitted to designate him to serve on
an "acting basis" because he does not meet the qualifications
newly prescribed by the Council.

It is not as if Mr. Maddox does not meet the qualifications for IG
prescribed by Congress. On the contrary, as his resume (attached as
Exhibit C) shows, he had a distinguished career of public service prior to
his appointment as IG. Among other things, he served as Inspector General
of the U.S. Peace Corps, General Counsel of the OIG, and Deputy OIG. When
the control board unanimously approved him as IG in 1999, it determined
that he was "eminently qualified to fill this vital position by
reason of his background, training, experience, temperament, character,
integrity, and demonstrated ability in public administration and
investigations." In other words, he fully met the qualifications laid
down by Congress.

The Council further overreached here by attempting to remove Mr. Maddox
by passing a so-called "emergency" act which does not have to be
submitted for congressional review under the Home Rule Act. (Only
temporary and permanent legislative acts need be submitted for a period of
congressional review before they can become effective.) Conveniently
making June 1, 2003, the purported date of a vacancy in the office of IG
– within the 90-day period to which "emergency" acts are
limited – the Council sought to avoid any congressional review of its
action and to present the Mayor, the citizens of the District, and
Congress with a fait accompliin the removal of Mr. Maddox.

Violation of Separation of Powers

3. The Council’s IG Act violates central provisions of the Home Rule
Act, those establishing the separation of powers within the District
government along the same lines as the U.S. Constitution ordains for the
federal government. Title IV of the Home Rule Act creates a tripartite
structure for the District government, patterned on the federal
government. See Wilson v. Kelly, 615 A.2d 229, 231 (D.C.
1992). As the Court said in Wilson v. Kelly, supra,
615 A.2d at 231:

"Indeed, by its own statutory enactment, the Council has
explicitly declared that it recognizes the principle of separation of
powers in the structure of the District of Columbia government. [citing
what is now D.C. Official Code Section 1.301.44 (b).]"

Thus the Home Rule Act, in D.C. Official Code Section 1-203.02,
provides that the Council’s "legislative power" extends to all
"rightful subjects within the District", subject to certain
limitations.

Of equal importance, the Home Rule Act, in Section 1-204.22, vests the
"executive power" of the District of Columbia in the Mayor.

It will be recalled that Section 303(a) of FRMAA establishes the OIG as
an agency "within the executive branch" of the District
government and provides for the IG’s appointment and removal only by the
Mayor in non-control years like the present.

It therefore follows that the U.S. Supreme Court decisions dealing with
the separation of powers in the federal government—and specifically with
the removal of executive branch officers—are relevant to similar issues
arising in the District government. See Wilson v. Kelly, supra,
615 A.2d at 231. ("…it is reasonable to infer from this tripartite
structure and the vesting of the respective ‘power’ in each branch
that the same general principles should govern the exercise of power in
the District of Columbia as are applicable to the three branches of
government at the federal level.")

It is firmly established that the power to remove an official who
performs executive functions is an executive, not a legislative, power.
See Myers v. United States, 272 U.S. 52 (1926). Accordingly, the
Supreme Court has struck down Acts of Congress in which Congress attempted
to involve itself in the removal of executive officials. Bowsher v.
Synar, 478 U.S. 714, 723, 726 (1986); Myers v.United States,
supra. As the Supreme Court stated in Morrison v. Olson, 487
U.S. 654, 689-690 (1988):

"[t]he analysis contained in our removal cases is designed. . .
to ensure that Congress does not interfere with the President’s
exercise of the "executive power" and his constitutionally
appointed duty to "take care that the laws be faithfully
executed" under Article II."

Thus, by application of the separation of powers principles in the U.S.
Constitution, as interpreted by the Supreme Court, and embodied in the
Home Rule Act, the Council’s attempt to exercise a removal power over an
executive branch official of the District government is ineffective. It
cannot stand consistent with the tripartite government established by the
Home Rule Act.

State supreme courts confronted with similar issues have reached the
same result as to legislative efforts to remove public officials. For
example, in Ahearn v. Bailey, 451 P.2d 30 (Ariz. 1969), the
plaintiff was appointed to a three-member commission for a six-year term.
About two years into the six-year term, the legislature shortened the term
to three years and increased the number of members to five. The Governor
re-appointed two of the three original members and appointed three new
members to the newly constituted commission. The one original member who
was not re-appointed by the Governor challenged the shortening of his term
by the legislature as a violation of the separation of powers, and the
Arizona Supreme Court agreed.

The court quoted from an early removal case decided by the United
States Supreme Court that is often cited:

"[t]he fundamental necessity of maintaining each of the three
general departments of government entirely free from the control or
coercive influence, direct or indirect, of either of the others, has
often been stressed and is hardly open to serious question. So much is
implied in the very fact of the separation of the powers of these
departments by the Constitution; and in the rule which recognizes their
essential coequality." Humphrey’s Executor v. United States,
295 U.S. 602, 629 (1935).

In striking down the attempt to shorten the term, the Ahearn
court held that the power to remove is an executive function. The court
noted that, although the legislature may prescribe the grounds or causes
for removal, it may not "directly undertake to remove a public
officer except as granted under the constitutional power of
impeachment." Id. at 33. The court rejected the argument that
the legislature’s power to abolish offices may be exercised at will. It
ruled that this power may not be used as "a device to unseat the
incumbent, thereby encroaching upon the authority of the executive."1

In Kelley v. Clark, 193 A. 634 (Pa. 1937), a state statute
provided that the Civil Service Commission of the City of Philadelphia
would consist of three Commissioners elected by the City Council for a
four-year term. The state legislature subsequently enacted a statute that
abolished this Commission and established a new Commission that would be
composed of two members appointed by the Mayor, two members appointed by
the City Controllers, and one member elected by these four members. It
also provided that the act would become effective immediately. The
Pennsylvania Supreme Court ruled:

"[t]he acts considered together, as they must be, make it plain
that the intention was to oust the commissioners elected by the city
council and put in their places commissioners appointed by the mayor,
the controllers, and their appointees. There was no intention to abolish
the office; language in the [act] that it is abolished is mere
subterfuge. The intention to the contrary is too obvious." Id.
at 636.

While the court acknowledged that an office created by the legislature
exists by the will of the legislature and may be abolished at any time,

"[i]t does not follow, however, that the legislature can, by
direct or indirect means, continue the office and remove an incumbent
whom it has not appointed. And it may not, for such purpose, change the
appointing power, thereby shifting the power of removal." Id.
at 637.

See also State ex rel.. Hammond v. Maxfield, 132 P.2d 660
(Utah. 1943)(legislature may not indirectly circumvent the governor’s
power to remove).

An opinion of the Congressional Research Service of the Library of
Congress reaches the same conclusion as to the Council’s effort to
remove Mr. Maddox. A copy is attached as Exhibit D.

Conclusion

The Council’s IG Act must be deemed a nullity as a matter of law. It
imposes no ministerial duty enforceable by mandamus. Its provision
purporting to require the Mayor to submit a new nomination for IG within
30 days of the occurrence of a vacancy in the office, i.e., within 30 days
of June 1, 2003, is equally futile and of no force and effect. There is no
vacancy.

Mr. Maddox is entitled to continue to hold his office until the
expiration of his term, unless removed by the Mayor in accordance with the
standards and procedures prescribed by law. The petition should be
dismissed.

1. The court stated that the legislature may use its
power to create or abolish an office when it serves legitimate reasons of
economy or reorganization, such as when the legislature: (1) abolishes an
office and no substitute is created; (2) abolishes two or more offices
with substantially the same duties or different duties and combines the
duties under one office for reasons of economy or genuine reorganization;
or (3) abolishes an office and creates a new office that has substantially
new, different, or additional functions, duties or powers so that it is an
office different from the one abolished, even though it also includes the
duties of the abolished office. Id. at 35. In other words, the
legislature must be exercising its legitimate legislative powers, and not
encroaching on the executive power of removal.